Malpractice is so prevalent in the United States that the American Medical Association has identified it as the nation’s third-leading cause of death, behind only heart disease and cancer. If you have suffered an injury due to malpractice, you are legally entitled to monetary compensation. The hard part is proving the elements of a malpractice claim, and one of the major sticking points here is the issue of causation.
It is critical that you prove causation either directly or indirectly. Even if you were to establish that your doctor was intoxicated when he performed surgery on you, you could still lose your claim if you couldn’t also show that the doctor’s intoxication was the cause of the harm you suffered.
The Four Elements of a Malpractice Claim
To win a malpractice claim, you must prove that the following four legal elements are present:
- The defendant owed you a duty of care. You can establish this element by proving the existence of a doctor-patient relationship. This element might become an issue if the defendant witnessed your auto accident and administered first aid at the scene of the accident. The defendant might argue that you two never formed a doctor-patient relationship, even though he did happen to be a doctor.
- The defendant breached his duty of care by treating you in a manner that fell below the expected standard of care for a medical professional of his training and experience. Typically, you can establish the standard of care that applies to a particular malpractice claim through the use of expert medical witnesses. Once you prove a breach of the duty of care, you have established medical negligence.
- You suffered damages. Typically, your compensation will arise from the pain and suffering associated with a tangible physical infirmity, plus related incidental expenses such as medical bills and lost earnings at work.
- The damages that you suffered were actually caused by the defendant’s negligence (see below). This is the issue of causation, around which many malpractice claims revolve.
The Two Types of Causation
Connecticut law recognizes two distinct types of causation: cause in fact and proximate cause. Ordinarily, both of these types of causation must be present to establish malpractice liability.
- The actual causation test, also known as the “but for” causation test, asks whether the plaintiff’s harm could have occurred but for the wrongful act or omission of the defendant. Even if you conclude that the plaintiff’s damages would not have happened “but for” the defendant’s act or omission, this conclusion is not enough by itself to establish the defendant’s legal liability for the plaintiff’s harm.
- The proximate cause test asks whether the resulting harm was a reasonably foreseeable consequence of the defendant’s wrongful act or omission, such that it would be fair to hold the defendant financially liable for the resulting harm. If not, the defendant is not liable for compensation, even if he acted negligently.
The “Preponderance of the Evidence” Standard
A civil trial for money damages, such as a malpractice lawsuit, is not like a criminal prosecution. Since the defendant’s risk is limited to financial ruin rather than incarceration, it is a lot easier to prove a malpractice claim than it is to prove that the doctor committed a crime. Although the legal standard of proof in a criminal trial is “beyond a reasonable doubt,” the legal standard that applies to a malpractice claim is a “preponderance of the evidence.”
A “preponderance of the evidence” means that the evidence in favor of whatever it is you are trying to prove outweighs the evidence against it by at least a little bit (51 percent vs. 49 percent, for example). To win a malpractice claim, you must establish each of the four elements of a malpractice claim by the preponderance of the evidence standard, including both cause in fact and proximate cause.
The Significance of Expert Medical Testimony
Medical negligence and malpractice issues can get scientifically sophisticated. It is not always apparent to an untrained judge or juror what the exact standard of care should be in a given situation, much less whether the defendant violated that standard. Although there are cases in which liability is apparent, such as when a surgeon operates on the wrong body part, you will typically need expert medical testimony to establish the applicable standard of care.
When it comes to the issue of causation, medical experts will argue about both cause in fact and proximate cause. While identifying “cause in fact” tends to be an objective determination yielding a definite yes or no answer, identifying proximate cause involves a strong element of subjectivity (“Would it be fair to hold the defendant liable under these circumstances?”).
Both the plaintiff and the defendant may call medical expert witnesses, and each side’s lawyer may cross-examine the other side’s witness. Ultimately, it is up to the court (the judge or the jury) to decide who to believe. Typically, the expert witness is a former doctor whose service as an expert witness is paid for by the party who calls him as a witness in the first place. Lawyers for both sides will, of course, bring to the court’s attention the fact that the opposing party is paying its expert medical witnesses for their testimony.
Res Ipsa Loquitur
The legal doctrine is known as res ipsa loquitur (“the thing speaks for itself”) allows you to establish malpractice liability using only circumstantial evidence to prove negligence and, if necessary, causation. Suppose, for example, that you enter the hospital for surgery. Six months after your surgery, you begin to experience severe pain, and an examination reveals that a medical instrument was forgotten inside your body when the doctors sewed you back up after surgery.
Under these circumstances, it might not be possible to establish precisely how the medical instrument was left inside your body. Nevertheless, the application of common sense suggests that (i) the mishaps could not have occurred without negligence on someone’s part, and (ii) the negligence was almost certainly committed by medical staff. The res ipsa loquitur principle allows you to “fill in the blanks” to establish negligence and causation.
The elements of res ipsa loquitur
The following elements must be present before you are allowed to simplify the proof of your malpractice claim by appealing to the principle of res ipsa loquitur:
- The circumstances that caused harm on you are unlikely to have arisen unless someone acted negligently.
- The defendant controlled the conditions that applied at the time of your injury (he exercised control over the functioning of the operating room, for example, and had the ability to inspect these conditions).
Common Affirmative Defenses
Usually, the burden of proof lies with the plaintiff to prove every element of his malpractice claim. An affirmative defense, however, allows a defendant to counter the plaintiff’s case against him by proving specific facts after the plaintiff has already presented his arguments. The following are some of the most common affirmative defenses against a malpractice claim:
The defendant may assert that the harm you suffered was the result of an injury or illness that occurred before he ever treated you. This reasoning assumes that the defendant couldn’t have caused something that already existed by the time he first treated the plaintiff.
If the defendant misdiagnosed an incurable condition that you suffer from, for example, he could argue that his misdiagnosis didn’t change your medical outcome even if it did constitute medical negligence. Under these circumstances, the defendant could even admit medical negligence and still escape liability.
Limitations on the “pre-existing condition” defense
Merely calling a condition “pre-existing” does not automatically relieve a malpractice defendant from liability. Suppose that a doctor fails to accurately diagnose a patient who is suffering from cancer, resulting in a critical delay in treatment. If the patient dies of the disease when he probably could have been cured if the doctor had issued an accurate and timely diagnosis, the doctor cannot escape liability for the patient’s death by calling cancer a “pre-existing condition.”
In Connecticut, if the plaintiff is partly to blame for the harm he suffered, his damages will be reduced in proportion to his percentage of fault. If the plaintiff is over 50 percent at fault, however, he will receive nothing. A comparative fault defense might become relevant if, for example, the patient takes illegal drugs in addition to his prescribed medication, thereby causing injury to himself due to an adverse drug interaction.
A supervening cause is a second cause of the plaintiff’s harm that occurs after the defendant’s wrongful act. A supervening cause must be so decisive that it could be said to break the chain of causation between the defendant’s wrongful act and the harm suffered by the plaintiff.
Suppose, for example, that a doctor misdiagnosed a severe medical condition that was easily treatable at first, but which became a permanent disability later. Upon learning of his disability, the patient commits suicide. Should the doctor be held liable for the patient’s death?
Most courts would say no, because although “cause in fact” may have been present, “proximate cause” probably was not. In such a case, a court would likely treat the patient’s decision to commit suicide as a supervening cause. If the patient had not committed suicide, however, the doctor’s civil liability for the patient’s disability would be difficult to dispute, since it arose from the doctor’s misdiagnosis.
We Can Maximize Your Chances of Victory
At Berkowitz Hanna, we have been handling malpractice claims for a long, long time now. Indeed, we enjoy decades of combined experience in practicing malpractice law, and we have won dozens of seven-figure verdicts and settlements for our clients.
Call Berkowitz Hanna today or contact us online for a free initial consultation on your case. And remember: As an injury victim, you only pay us if you win. We serve clients from all over Connecticut from our offices in Stamford, Bridgeport, Danbury, and Shelton.